NOEL KING, HOST:
Today we're hearing from senators who are playing a pivotal role in shaping the future of the U.S. Supreme Court. Republican Sen. Ben Sasse of Nebraska is with us. He'll have the chance to question Judge Amy Coney Barrett this morning. She goes before the Senate Judiciary Committee again today. Barrett's confirmation process is happening quickly. The hearing started just yesterday, 22 days before the presidential election. Sen. Sasse, good morning. Thanks for being with us.
BEN SASSE: Noel, thanks for the invitation. Good to be here.
KING: Let's start by hearing from Sen. Kamala Harris, the Democratic candidate for vice president who also sits on this committee. Here's how she views this process.
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KAMALA HARRIS: A clear majority of Americans want whomever wins this election to fill this seat. And my Republican colleagues know that. Yet they are deliberately defying the will of the people.
KING: Now, around 9 million Americans have already voted. We don't know who's going to win. Polls show a majority of both Republicans and Democrats want the winner to nominate the Supreme Court judge. Why not wait?
SASSE: Well, thanks for the question. And, obviously, there's lots of history here where a lot of people want to view everything as Hatfields and McCoys. But I'd actually back up a step and ask, why do we think that every Supreme Court vacancy and nomination is so end-of-civilization-ish (ph), right? Like, why do we act like the politicization of the court is a normal thing to do? So I wish that we talked about justices in the ways that they were talked about for lots and lots of American history until a couple of decades ago.
KING: I think a lot of people wish that. But the argument is that the politicization started in part when Mitch McConnell and others blocked Merrick Garland's nomination with the same words that are being used now - we're close to an election. The people should vote. That sounds, to a lot of people, like hypocrisy. How do you personally grapple with that accusation?
SASSE: Well, you're asking a fair question that you - I understand why you'd want to put to a lot of Republican senators. But I actually hold the exact same position now that I held in 2016, which is that there are two plenary powers in the Constitution. One is for the president to nominate. And the second is for the Senate to advise and to provide consent or not assent and not consent. And I reached out to the Obama administration and told them the kind of person I'd like to see them nominate. And so I believe that we need people who understand why they put on a black robe. I believe the same thing now that I believed in 2016.
KING: Amy Coney Barrett sits on the Seventh Circuit Court of Appeals. And President Obama nominated a different replacement almost a year before President Trump took office. Senate Republicans blocked that nomination. In fact, Republicans blocked dozens of Obama-era judicial appointments. You say that judges should not be partisan - in an ideal world, should not be partisan. But a process that relies on who is in power to make nominations is partisan. It's a problem for your argument.
SASSE: No, I don't think so. I mean, there are two political branches. And there's a third branch that's not political. So the constitutional structure has three separate but equal branches that check and balance one another. The two branches - the legislature and the executive - that are elected, we advocate for policy positions. We argue before the American people what we think we want to do with our power. And therefore, the people have the check on whether or not they want to retain politicians or fire them every next election. But judges are different. They wear robes. They have lifetime tenure. And they don't stand for election or reelection. And so we should get back to a question of asking, why do they put on a black robe? It is because they are not supposed to be politicians. The language of conservatives and liberals voting...
KING: But the thing is politicians are not getting - politicians don't get a lot done. I mean, this is actually part of it...
SASSE: That's true (laughter).
KING: ...Is there's a lot that politicians aren't getting done. And as a result, it gets kicked over to the courts, these highly political things where you might want it to be decided by Congress, but Congress isn't doing it. So it does get kicked over to judges.
SASSE: Well, so - Noel, you're identifying a real problem. And your solution, I think, is to make it worse, which is to treat the judiciary as a super legislature, though not at all accountable to the American people. I think you and I would definitely agree that America is way too polarized right now. There's way too much division. There's way too little common sense problem-solving happening. And the solution is not to say, let's take nine people in robes who never stand before the voters and say give them more power. What we should be doing...
KING: My solution, for the record, would be that Congress should get some things done.
SASSE: That's more aligned - (laughter).
KING: It sounds like we agree on that. Yeah. You have suggested that skeptics take a look at Judge Barrett's record. In 2017, she wrote a law review article criticizing Justice John Roberts for upholding the Affordable Care Act. The court...
SASSE: No, she didn't.
KING: ...The Supreme Court is - go ahead, please.
SASSE: I don't think she did. She talked about the argument in the case, about whether or not judges can rewrite a statute. You're summarizing it, I think, as the policy outcome. And I think something different is happening. It is 100% legitimate for people today in their questioning to ask what she was meaning in that article, why she took issue with Judge - Chief Justice Roberts' opinion and what she thought about the dissents in that opinion. All that is completely legitimate.
That's different than summarizing it, as was done by not just Sen. Harris and - vice presidential candidate Harris or all the other Democrats on the committee yesterday who talked about the Affordable Care Act and the particular - but a different - case that's before the court right now, and whether or not there's a specific policy goal about, quote, "taking away health care from the American people." That is to make the judges and justices into policy advocates and into politicians. And so they weren't asking the question that I think is at the root of your very good question, which is, what was her disagreement with John Roberts' jurisprudence in that case? They instead talked about it as the policy outcome about Obamacare. And that's the line we shouldn't be crossing.
KING: Democrats - in the seconds we have left - Democrats have asked her to recuse herself if the results of this election end up before the Supreme Court. She has not committed to do that. Should she?
SASSE: Well, I mean, what case is going to come before the Supreme Court?
KING: The election, potentially. President Trump seems to think so.
SASSE: Well, President Trump says lots of things that I don't agree with and that don't make sense. Your producer's telling me we're at time. But we should continue to discuss this because I think there are lots of different things that could be litigated in the future. We don't know what those are yet.
KING: Sen. Ben Sasse, Republican from Nebraska. Thank you.
SASSE: Thank you. Transcript provided by NPR, Copyright NPR.